Consular Protection of Foreign Nationals in the United States Armed Forces

• Author: Najor James J. McGowan and William D. Haught
• Pages: 04

This article ezamines a recently enacted joint service regulation providiRg for notification of consula~ offLcws whenever a foreion national, servino in the Cnited States Armed Forbes 6 apprehended eoiLfinsd or brought to trial under thk L'nifom Code'of Military Justtee. The authors dtsouss the leaal basis fo7 thts C O ~ ~ U ~ Q T

aro-

. .

'Tho opinions and conelmima preamted herein are those of the authm and do not necessarily represent the views of The Judge Advocate General's School 07 m y other governmental agency.

"JAGC, US

Army; Office of The Judge Advocate General, International Affairs Divisron; B.S., 1959, Spring Hili College: LL.B., 1962, Sew Yark Law School; member of the bars of the State of New York end the L'mted Ststla Court of Mllitsry Appesla.

***Associated w t h the law firm of Weeks, Thomss, Lysaught Binghsm & Johnston Chartered of Kansas City and Overland Park Kansas. B.A. 1861 and xi,

10~8.

cdorgetowi u n A &

Law Center; member of the bars of the State of Ksnaaa and the Umted states Sup~omo court.

'Army Reg. No. 27-52 (5 Nor. 18681 : SECNAVINST No. 5820.6 (5 Xov.

1964. rn(iv.er)ity of as: LL M.,

48 Military Law Review

take whatever steps he deems appropriate to safeguard the interests of such person. The purpose of the regulation is to implement, within the military departments, provisions contained in a number of consular treaties between the United States and other countries* which entitle the consular representatives of the contracting parties to receive immediate notice whenever a national of the sending state is subjected ta the criminal PrOceSSeS of the receiving state, and to advise, assist, and represent the foreign national concerned.1

This article reviews the treaty law upon which the foregoing regulation is based, discusses some of the legal and policy ques-tions involved in applying the notification provisions of consular treaties to cases ariaing under the UCMJ, and describes the procedure8 set out in the regulations. The writers believe the regulation is noteworthy for several reasons. For one thing, it constitues a new and interesting development in the field of military justice. There does not appear to be any precedent in the military criminal law of the United States (or any other country, to the writers' knowledge) for consular notification under the circumstances specified in the regulation.'

The importance of the regulation in this respect lies not in the specific changes it has made in the administration of military justice, but in the potential that significant changes in international law and practice pertaining to consular protection of accused or detained alien servicemen alii come about as a result of the regulation and the underlying determination of the De-partment of State that consular officers have a treaty right to receive notice of and inquire into the arrest, confinement, or trial of their fellow nationals under the military as well as civilian criminal law of the receiving state. Moreover, it represents one of the first and to date most comprehensive efforts to establish an administrative method for carrying out the noti. fication provisions of such consular treaties. A parallel procedure

'See infie nates 11, 12, and 28.a Ai used in this artdo, the term "sendmg state'' refers to the country that haa sppornfed and 86 represented by the emsu!; "reeewing state'' refera to the eountry to which the eanaui is assigned and

'Consular Acceaa to detained alien servicemen has. in st lesst one instance, been the subject of B United States military directire See Dep't of the Army Letter, AGAM-PIM) 250.4 15 Mar. 1958 JAGW, iivbleet Prir-ilegen of Consular Officers of the L'n:ted Kingdom u'hen Bntlrh !,fernbere of the United Srstea Army are Confined, 2 Apr 195s Thls directive .lea provided that written notice be gwen to the nearest Brltliih consui or through the Cnited States Embassy ~n London whenever B Brltlrh netme! weB eon.fined P Y I I Y ~ ~ ta militan. order ~n ovemlid areal It does not now appear that the farcgomg dlreetive 18 in farce.

Consular Protection

was adopted by the Department of Justice on 23 January 1967, which is applicable to arrests of foreign nationals by officers of that department.6 Similar procedures may be put into effect at the state and municipal level8 in response to recent communications from the Secretary of State to the Governors of all states.' While the overall impact of these developments in the international practice of the C'nited States upon arrests and criminal prosecutions of aliens. or upon the practice of other countries, is uncertain at this point, the potential for important changes in international practice in this area of consular law is plain.

11. LEGAL BASIS FOR CONSULAR PROTECTION OF ACCUSED AND DETAINED ALIENS

The Tight of a consular officer to protect and promote both the personal and business interests of his fellow nationals within the consuiar district, and to address authorities of the host country for such purpose, has long been recognized and expressed in consular treaties. The exercise of this right, in a manner consistent with his instructions and with applicable domestic iaw of the receiving state, is so essential to the office of a consular representative that its denial would be contrary to customary international law, even in the absence of a treaty provision eanferring such right.'

'Published in 32 Fsdeiol Reiislrr 1040 (19671. The Department of Jus-tice proeedure 1% similar to the procedure adapted by the mlllrsry depart-menta, except: (1) consular notification ia given only upon the mreit of a foreign national, (2) The Department of Justice procedure 1% applicable to United States territories and possessions: and (3) consular notifiestion 18 repuired even rhere the foreign natimd arrested is slso B United State8 na-tionsi. In all caieli, including those where the foreign national has stated to the arresting officer that he does not wish his emsul to be notified, the loeal office of the United State8 Marshal Federal Bureau of Investigation, or Immkration and Nsturali%atmn Semke, whichever effected the arrest, will infam the nearest United States Attorney of the aireat and of the arrested pelion's wishes regarding ~onsulsr notification. The United States Attorney providea notification to the appropriate consular afleer where such notifieation has been requested or where It is required by treaty regapdless of the wishra of the foreign nations1

'The Department of State eent a latter to the Governors of all stater on Februaly 6, 196% inclosing a compilation of tFesty pmvisiona then ~n farce "reiating to the duty of the United States to notify mnsuis of the arrest of their f~llow natmnaii." 57 AH. J. IST'L L. 411 (19631. A similar letter and eompilatim were diapatehed by the Department ~n 1B66 to the Gaver-nor8 of all alates, territories and posaesamna. and the Chairman of the Cam-misaion8m of the District of Columbia. 60 AM. J. 1IT'L L 386 (19681. See

NOTIPICAT~ON OF Fmemn COXSULB (1966)

"'The right of a eonsalar officer ~Rleially to confer with a foreign magis.tlatp concerning the e m of one of his fellow countvmen, pending befare

15s

dm OFFlCE or SPECIAL conswUR SERVICES, DEF*ITM&BT OF ST*TE, POLEE

48 Military Law Review

Traditionally, consular officers have been limited both by treaty law and the instructions of their home governments to the performance of "non-diplomatic" functions dealing with matters affecting the private rights and interests of sending skte nationals residing, visiting, or doing business in the receiving state.' One of these traditional consular functions is that of receiving and acting upon grievances resulting from a failure of the host country to deal with the person or property of an alien in a manner consistent with rules of private international law and applicable treaties of navigation, commerce, or amity between the receiving and sending states.' Implicit in the exercise of this function is the right of a consul to visit, communicate with, and provide assistance to his fellow nationals who are accused of a crime in the receiving state.

The United States first agreed to give consular notiflcation in cases where sending state nationals are accuse? or detained within the receiving state in 194S.ln Prior to that time the right of a consul to protect and assist his nationals in such eases was meaningful only where the consul concerned received a request for assistance from the accused or detained national, or otherwise had the requisite information, interest, and initiative to provide it. With the addition of notification provisions to consular treaties, many of which glve the detained or accused alien such magistrate is a right recognized by the isw of nstiona and vmformiy admitted by ga&nments in their mtercourse. The right i8 'elesrly ineldent ta the exercise of his rights as P natural protector of hia countrymen." Letter from Director of the Consular Service (CARR) to the Consul General of Mexico NO 101 7 Oetaber 1010. clted I" 4 G. HACKWORTH

DIOWT OF

INTTPIZAT&AL LAW 28687 (10421 1 [hereafter cited PB...